Dr Sarah Benn v The General Medical Council

The Appellant contends, in summary:

In addition to contending that the decision on fitness to practise was wrong for the reasons set out in relation to misconduct, the Appellant argues:

The Appellant contends:

An appeal under section 40 of the Medical Act 1983 is by way of rehearing rather than review and the court is fully entitled to substitute its own decision for that of the tribunal (Sastry v GMC [2021] EWCA Civ 623, [2021] 1 WLR 5029 [96-102]). The appeal court will accord an “appropriate measure of respect” to the judgment of the specialist Tribunal but will not defer to the Tribunal more than is warranted by the circumstances (see Ghosh v GMC [2001] 1 WLR 1915; Sastry v GMC [2021] EWCA Civ 623; [2021] 1 WLR 5029). The appeal court may more readily depart from the Tribunal’s assessment of the effect on public confidence when the misconduct does not relate to professional performance than in a case which does involve professional performance (Khan v General Pharmaceutical Council [2016] UKSC 64; [2017] 1 WLR 169).

Although a rehearing, the appeal will generally proceed on the basis of the evidence that was before the Tribunal and without rehearing that evidence (CPR 52.21(2)). The principles for the admission of fresh evidence derived from Ladd v Marshall [1954] 1 WLR 2318 apply to an appeal under section 40 (GMC v Adeogba [2016] EWCA Civ 162, [2016] 1 WLR 3867).

The Appellant seeks to rely on additional material which was not before the Tribunal:

None of this material was solicited by Dr Benn. I accept that it shows genuine support for her amongst members of the profession and members of the public. To a large extent, it consists of opinion evidence including opinion on the merits of the Tribunal’s decision.

The parties took a pragmatic approach to the new evidence, allowing me to consider the material de bene esse and addressing me both on its admissibility and on its contents.

Mr Dunlop KC submitted on behalf of the Respondent that admitting this new evidence would create an unfortunate precedent, encouraging the reliance in the High Court on reactions to decisions of the Tribunal from sections of the public. I certainly agree that this is not something to be encouraged. Many high profile cases attract comment and generally an appeal court will not be assisted by consideration of statements of opinion about whether a decision is right or wrong. Indeed, that is likely only to distract from the dispassionate analysis of the law and the application to the facts which is required on an appeal.

The issues that arise on this appeal include consideration of the impact of Dr Benn’s conduct on public confidence and of appropriate professional standards for conduct outside medical practice. The Appellant specifically challenges the Tribunal’s view that the majority of members of the public would not condone her actions. Evidence of the public and professional view of Dr Benn’s conduct may therefore be relevant.

I consider it likely that if additional material showing support for Dr Benn had been available at the time, the Tribunal would have considered it. Even if it could be argued that the Appellant could have sought further evidence of support for her amongst the medical profession or the general public, I would not exclude the evidence on the first limb of Ladd v Marshall. The material did not come into existence until after the hearing, it was not actively sought by Dr Benn or her representatives but rather emerged in response to the decision.

No issue arises as to the credibility of the evidence nor is it material that needs to be tested by cross-examination. Admitting the evidence does not give rise to any question of adjournment. The evidence was in fact considered within the time allocated for the appeal.

The real issue with regard to admissibility is the relevance of the evidence and whether it is likely to have an important influence on the outcome. This requires analysis of the evidence, the extent to which it adds to what was before the Tribunal and the issues that require my determination.

I have concluded that it is appropriate to admit all the evidence which was the subject of the Appellant’s application. I have considered all of this material and have given careful consideration to the use that can properly be made of it and the weight to be given to it when analysing the merits of the appeal.

The survey had 1,785 participants. 43% were doctors, 14% other healthcare professionals and 44% members of the general public. 95% of participants felt that Dr Benn’s actions did not undermine the public’s trust in doctors and 96% disagreed with the conclusion that her fitness to practise was impaired. The authors recommended further research to explore public perceptions of activism by doctors and the broader implications.

While this survey showed strong support for Dr Benn amongst those who responded, the study had limitations, as the authors of the article recognised. The sharing of the survey on social media and the nature of algorithms meant it was more likely that those with a pre-existing interest in climate change and healthcare responded and it could not be said that the sample was representative of the whole population. It was also recognised that the phrasing of questions and sample bias could have influenced results.

During the adjournment after the first day of the hearing, Ms Richards KC conducted some further online research and discovered on the GMC website a research report Promoting and maintaining public confidence in the medical profession. The research upon which the report was based had the stated aim of exploring “how the public expect the GMC to respond to specific behaviours/acts/omissions by doctors, particularly when these behaviours/acts/omissions have also been subject to action through the criminal justice system.” Ms Richards sought to rely upon this report on the basis that it had been in the possession of the GMC but not the Appellant at the time of the hearing below and was relevant to the view of the MPT that the overwhelming majority of the public would not condone breaking the law in the way that Dr Benn did.

Through Mr Dunlop, the Respondent explained that the report had been commissioned as part of an independent review of gross negligence manslaughter and culpable homicide in the medical setting (“the Hamilton review”). The Hamilton review arose out of the well-publicised regulatory action against Dr Hadiza Bawa-Garba, following her manslaughter conviction. Having reviewed the research report, the Hamilton review concluded that “the research paints a picture of subtlety, and sometimes inconsistency, in the public view of medical error, wrongdoing and criminal conviction.” The opinion was expressed that:

“… the role of the GMC and MPT is not to react to the public mood of the moment (insofar as that can even be understood). Nevertheless, they must be cognisant of public expectations in the way in which they calibrate their regulatory sanctions if they are to maintain confidence in the profession.”

While maintaining the stance that none of the new material should be admitted, Mr Dunlop referred me to an article by Daniel Finklestein published in The Times on 1 May 2024 “Contempt for the law shows contempt for us all”. Lord Finklestein referred to the “public argument” about the decision to suspend Dr Benn, expressing strong support for the Tribunal’s decision. Mr Dunlop submitted that if I admitted the evidence on which the Appellant sought to rely, Lord Finklestein’s article should also be admitted by way of balance since it demonstrates that the public view of Dr Benn’s conduct was not all one way. I note that when giving evidence to the Tribunal, Dr Benn acknowledged that much of the media coverage sparked by the protests at the oil terminal was negative, arguing that “history shows that social movements do not have to be universally or even predominantly supported by the public and media to bring about change that is retrospectively agreed to be moral and necessary.”

If the Finkelstein article stood alone, it would certainly cross the line into mere comment on the decision which should not be admitted on appeal. However, the Respondent sought to make only limited use of it, that is to provide some balance to the materials the Appellant had introduced to correct what otherwise might be a misleading view that the commentary was all one way. The use that can be made of this article certainly cannot go beyond that. The Respondent is not entitled to rely upon the opinions expressed by Lord Finklestein in support of its case. However, I do consider that it is consistent with the overriding objective to deal with cases justly that, in light of the evidence I have admitted on the Appellant’s application, I admit it as evidence of the fact that the commentary on the case is not all favourable to the Appellant.

I therefore admit the additional material which each party referred to during the appeal on the same cautious basis as above, giving careful consideration to its relevance and use.

It is apparent that the Tribunal carefully considered their decision and recognised that they needed to decide both whether Dr Benn’s admitted conduct amounted to misconduct in the statutory sense and, if so, whether her fitness to practise was currently impaired. Although they separated these two elements out, there is some overlap between the two issues and the ruling needs to be read as a whole. I am conscious that the ruling was produced expeditiously and that the Tribunal did not have the benefit I have had of two days of legal argument from leading counsel on both sides. I do not intend to critically pick over every aspect of the ruling. Given that the appeal proceeds as a rehearing, it is unnecessary and inappropriate to do so. For the reasons that follow, I have concluded that there were some flaws in the Tribunal’s reasoning. I have then stood back and looked not only at the thrust of what they decided but also at the evidence presented to the Tribunal to arrive at my own assessment on the merits.

Given my approach and the number of grounds of appeal advanced, I will not deal separately with each ground although I have carefully considered all the grounds and the entirety of the submissions made to me. Some of the grounds can be taken more briefly than others.

The allegations which Dr Benn was required to answer contained no reference to any impact on public services. However, the evidence placed before the Tribunal in support of the allegations contained the sentencing remarks of HHJ Kelly, which included the following:

“The harm also extends to the consequences of the closure of part of the public highway whilst the protests and arrests were ongoing. That will have impacted on ordinary members of the public, including in particular those living in the vicinity of the terminal, who were trying to go about their daily lives.

Your actions also caused very significant harm to the police resources in Warwickshire and beyond at a time when they were already very stretched … The scale of your protest meant that multiple officers from across Warwickshire had to be diverted away from their normal policing duties to attend, including firearms, traffic and dog unit specialist officers. They attended not because there was any suggestion your protest was other than peaceful but due to the sheer number of protestors that needed to be arrested and processed. … There is also evidence … that officers had to work long past their shifts ended to process those arrested …”

In considering whether Dr Benn’s actions amounted to misconduct which impaired her fitness to practise, the Tribunal were bound to consider the context and consequences of her actions. The Appellant knew that the GMC relied on HHJ Kelly’s sentencing remarks. However, as later became apparent, Dr Benn did not accept the findings HHJ Kelly made when sentencing her.

The parties agreed that since the conclusions of HHJ Kelly which informed the imposition of the sentence were findings of a civil court, the position following GMC v Spackman [1943] AC 628 was that the civil court’s conclusion may be treated as prima facie proof of the matter alleged but that the registrant must be permitted to challenge the correctness of the conclusion and to call evidence if desired.

The extent of any disruption to the public or public resources was not explored with Dr Benn when she gave evidence at the misconduct and impairment stage. Dr Benn told the Tribunal that it was her intention only to contribute a small degree of disruption to the operation of the terminal. Relying on HHJ Kelly’s sentencing remarks, the Tribunal did not accept that there had only been a small degree of disruption to the wider public.

I accept that insofar as there were factual issues about public disruption, the burden of proof rested on the GMC. I do not blame Dr Benn for not specifically challenging the conclusions of HHJ Kelly at the misconduct and impairment stage since the point only came into focus when the Tribunal gave their ruling. However, if there was any procedural unfairness in the way in which this issue was dealt with, I do not consider it to have been material to the outcome.

Dr Benn gave evidence on the issue at the sanction stage. It is apparent that the Tribunal considered this evidence and weighed it against the sentencing remarks of HHJ Kelly. The Tribunal also viewed video evidence which showed the large police presence at the protest on 14 September 2022. They concluded that Dr Benn’s stance was naïve. That was a finding they were entitled to make on the evidence before them. I do not consider their findings would have been any different had Dr Benn been asked about this aspect before the determination on misconduct and impairment.

Ms Richards suggested Dr Benn may have called further evidence on the issue had the allegations included the fact that public disruption was caused. There is no indication of what that evidence might have been. No such evidence was included in the application to rely on fresh evidence. The reality is that Dr Benn accepts that there was a large police response. Her argument is that the police did not need to react in the way that they did. There is, in my judgment, no proper basis for arguing that the diversion of police resources and the disruption caused by road closures is not to be regarded as flowing from the actions of the protestors.

The argument that any assessment of the impact on the public or public services had to ignore the actions of other protestors and focus only on what Dr Benn did herself is plainly wrong. Dr Benn did not go out to protest alone. She knowingly joined an organised demonstration. That was a joint enterprise and there is nothing objectionable in holding her accountable for the consequences of the group action.

It follows that, although I acknowledge that the issue should have been explored with Dr Benn before reliance was placed on this factor at the misconduct and impairment stage, the failure to do that did not have any bearing on the outcome. The finding that there was some disruption to the public and public services reflects the evidence and it was appropriate to take it into account when determining the issues relating to misconduct and impairment.

The Act contains no definition of “misconduct”. When first enacted, the Act used the term “serious professional misconduct”. The earlier Medical Act 1858 used the phrase “infamous conduct in a professional respect.” Ms Richards submitted that all three phrases had the same meaning. She relied upon Roylance v GMC [2000] 1 AC 311 and Meadow v General Medical Council [2006] EWCA Civ 1390; [2007] QB 462. In Meadow Auld LJ said that it was inconceivable that “misconduct” as one of the current categories of impairment of fitness to practise should signify a lower threshold for disciplinary intervention by the GMC than was the case when the statute referred to “serious professional misconduct”. In reaching that conclusion, he relied upon the retention of the over-arching objective.

Concessions were made in cases after Meadow that the concept of “misconduct” in the present form of the Act was the same as “serious professional misconduct” in its original form, or at least that it did not connote a lower standard (see R(Remedy UK) v GMC [2010] EWHC (Admin) and Schodlok v GMC [2015] EWCA Civ 769).

Mr Dunlop accepted that there was no difference in meaning between “serious professional misconduct” under the legislation as originally enacted and “misconduct” in the current regime. However, he did not accept that it was appropriate to interpret misconduct by reference to the old phrase “infamous conduct in a professional respect.” He pointed out that the regime under the 1858 Act was very different and the only sanction then available was erasure.

In Beckwith v Solicitors Regulation Authority [2020] EWHC 3231 (Admin), the Divisional Court stressed the importance of construing and applying the particular terms of the regulatory scheme under consideration. The court said [19]:

“Great care must always be taken when seeking to apply an authority under one scheme to an appeal under a different scheme.”

The starting point then is to look to the current statutory scheme itself. Under the current provisions, “misconduct” is one of the grounds upon which a finding that a person’s fitness to practise is impaired may be made. The misconduct must therefore be of a nature that is capable of giving rise to a finding that fitness to practise is impaired. Plainly, not everything that may be described as misconduct in a dictionary sense will meet that test. The context is provided by the regulator’s over-arching objective in section 1 of the Medical Act 1983. If the conduct in question does not threaten to undermine one of the objectives set out in section 1(1B), it cannot be viewed as “misconduct” in the statutory sense. Viewed in that way, the misconduct must be serious and must have some link to and/or impact on the profession of medicine if it is to meet the statutory test.

To that extent, the concession made in this case and in earlier authorities that there is no meaningful distinction between “misconduct” in the current statutory regime and “serious professional misconduct” is correct. It is a straightforward proposition to say that misconduct that is not serious will not impact upon a doctor’s fitness to practise. However, defining what is and is not “professional misconduct” may be more difficult and potentially open to different interpretation. As the Divisional Court said in Beckwith [15]:

“What is or is not professional misconduct depends on the rules of the scheme that applies to the profession in hand.”

In Roylance, Lord Clyde said that it was inappropriate to attempt any exhaustive definition of the phrase “serious professional misconduct”, that the Professional Conduct Committee (who then occupied the role the Tribunal now has) were well placed to decide precisely where the line falls to be drawn and that their skill and knowledge should be respected. He referred to Doughty v General Dental Council [1988] A.C. 164, 173, in which Lord Mackay of Clashfern summarised the test as:

“… conduct connected with his profession in which the dentist concerned has fallen short, by omission or commission, of the standards of conduct expected among dentists and that such falling short as is established should be serious.”

In relation to misconduct outside clinical practice, Lord Clyde said (at 331 F-H):

“… it is not simply misconduct in the carrying out of medical work which may qualify as professional misconduct. But there must be a link with the profession of medicine. Precisely what that link may be and how it may occur is a matter of circumstances. The closest link is where the practitioner is actually engaged on his practice with a patient …

But certain behaviour may constitute professional misconduct even although it does not occur within the actual course of the carrying on of the person’s professional practice, such as the abuse of a patient’s confidence or the making of some dishonest private financial gain.”

He continued (at 331D-E):

“To take the point a stage further, serious professional misconduct may arise where the conduct is quite removed from the practice of medicine, but is of a sufficiently immoral or outrageous or disgraceful character.”

He gave an example of a doctor who had sexually abused his child and said (332G):

“One particular concern in such cases of moral turpitude is that the public reputation of the profession may suffer and public confidence in it may be prejudiced.”

However, Lord Clyde stressed that “moral turpitude” was not the only kind of conduct outside medical practice which might constitute serious professional misconduct.

Auld LJ in Meadow suggested that Lord Clyde’s discussion of the meaning of “serious professional misconduct” in Roylance could be encapsulated as:

“… it must be linked to the practice of medicine or conduct that otherwise brings the profession into disrepute, and it must be serious.”

In Remedy UK (a judicial review of the decision of the GMC not to bring disciplinary proceedings), the Divisional Court considered authorities on the scope of misconduct including Roylance and Meadow. Elias LJ set out the principles he derived from the authorities at paragraph 37 of his judgment. At sub-paragraph (1), he said:

“Misconduct is of two principal kinds. First, it may involve sufficiently serious misconduct in the exercise of professional practice such that it can properly be described as misconduct going to fitness to practise. Second, it can involve conduct of a morally culpable or otherwise disgraceful kind which may, and often will, occur outwith the course of professional practice itself, but which brings disgrace upon the doctor and thereby prejudices the reputation of the profession.”

In relation to the second limb, Elias LJ said [37(6)]:

“Conduct falls into the second limb if it is dishonourable or disgraceful or attracts some kind of opprobrium; that fact may be sufficient to bring the profession of medicine into disrepute. It matters not whether such conduct is directly related to the exercise of professional skills.”

Drawing a distinction between misconduct and deficient performance (which was the ratio of the decision), Elias LJ said [37(9)] that even where deficient performance leads to a lack of confidence and trust in the medical profession that will not of itself suffice to justify a finding of gross misconduct. He said:

“The conduct must be at least disreputable before it can fall into the second misconduct limb.”

In Adil v GMC [2023] EWCA Civ 1261; [2024] ICR 445, Popplewell LJ said [at 71] that he did not think Elias LJ was intending any rigid classification of cases into two categories and said that such would not be helpful. I agree with the submission made by Mr Dunlop that it would be wrong to treat Elias LJ’s summary in Remedy UK as creating a separate test for cases involving conduct outside the exercise of professional practice. I was referred also to Nandi v GMC [2004] EWHC 2317, in which Collins J said [32] about serious professional misconduct:

“There are no closed categories and the appropriate standard is a matter for the Committee to decide. It is not restricted to conduct which is morally blameworthy.”

I agree that there are and can be no closed categories of what is and is not misconduct. The authorities make clear that exhaustive definition is not possible. I agree also that “moral blameworthiness” forms no part of the definition. Reading the judgment as a whole, I do not understand Collins J to have meant that the appropriate standard was a matter for the Professional Conduct Committee alone. Had he intended that, I would have disagreed. The standard must be assessed by reference to the statutory provisions (including the section 1(1B) objectives) and the published guidance contained in GMP.

The need to have regard to identifiable standards was stressed in Beckwith. In that case, the standards were to be ascertained by construction of the contents of the SRA Handbook, because that was the legally recognised source for regulation of that profession. This facilitated a principled approach to the extent to which it is legitimate for professional regulation to reach into personal lives of those who are regulated. That point also arises in this case.

The Divisional Court said:

“There is a qualitative distinction between conduct that does or may tend to undermine public trust in the solicitor’s profession and conduct that would be generally regarded as wrong, inappropriate or even for the person concerned, disgraceful. Whether that line between personal opprobrium on the one hand and harm to the standing of the person as a provider of legal services or harm to the profession per se on the other hand has been crossed will be a matter of assessment for the Tribunal from case to case, but where that line lies must depend on a proper understanding of the standards contained in the Handbook.”

Drawing the above together, I approach the issue of misconduct on this basis:

The Tribunal’s essential finding on misconduct was that Dr Benn’s actions fell so far below the standard of conduct to be expected of a doctor as to amount to serious misconduct.The reasoning that underpinned that finding focused heavily on the unlawfulness of Dr Benn’s actions.

In my judgment, the Tribunal overstated the requirement for a doctor to act within the law at all times. It was argued on behalf of the GMC, both at the hearing below and on appeal, that doctors have a particular responsibility to uphold the rule of law. The guidance in GMP did not then (and does not now) impose an obligation to uphold the rule of law. (This can be contrasted with the SRA Principles considered in Beckwith, which do contain the requirement for solicitors to “uphold the rule of law and the proper administration of justice”.)

The rule of law arguments detract from the proper scope of regulation in this case. I consider them unhelpful arguments, which fed into the Tribunal’s statement that it was not for them to decide on circumstances where a doctor is permitted to deliberately act outside the law. A doctor cannot be permitted to deliberately act outside the law, nor can anyone else. The rule of law applies to everyone. The rule of law was applied to Dr Benn when the High Court enforced its orders and sentenced her to a period of imprisonment. It was therefore a mischaracterisation of the issue to suggest that Dr Benn’s arguments would result in the Tribunal permitting doctors to act outside the law.

It was also putting matters too highly to state that paragraph 1 of GMP (2013) contained an unambiguous and unconditional requirement to act within the law.

The guidance in force at the time was the 2013 version. It would be wrong to apply the 2024 version retrospectively in considering Dr Benn’s actions in 2022. However, the Appellant invited consideration of the later version as an aid to interpretation of the relevant 2013 guidance. That point was not raised before the Tribunal and they properly had regard to the guidance that applied at the time of the relevant conduct. I reject the argument that they should have invited submissions on the 2024 guidance. I have though considered the submissions made to me about the 2024 guidance.

The guidance needs to be construed sensibly according to the ordinary meaning of the words used, taking it as a whole and in light of its context and purpose. Paragraph 1 of the 2013 GMP set out in general terms what was expected of a doctor. It was an introduction to the guidance that followed and appeared under the heading “Professionalism in action”. That section is to be read across all four domains. When read in context and with paragraph 65, it contains an expectation that doctors will maintain high standards of professional and personal conduct. The reference to acting within the law is not qualified as relating only to medical practice and I accept paragraph 1 did reflect a general expectation that doctors will conduct themselves within the law.

Ms Richards argued that the carefully structured 2024 guidance does not contain an equivalent to paragraph 1 in the 2013 version and that this demonstrated that there was no fundamental obligation to act within the law as the Tribunal had found. It is right that in the 2024 version the only express reference to following the law is under the heading “Being competent” but domain 4 “Trust and Professionalism” is explicit in the expectation that medical professionals uphold high personal and professional standards of conduct. High personal standards of conduct generally include abiding by the law. Taken as a whole, I consider that both versions of the guidance convey the message that doctors are expected to maintain high standards of conduct personally as well as professionally and that professional standards may have a bearing on personal conduct.

It is apparent that the Tribunal were well aware that not every breach of the law would amount to misconduct and/or be referred to the Tribunal. They noted Dr Benn’s criminal convictions in 2019, which did not result in referral to the Tribunal but distinguished her conduct on this occasion as being more serious. The Convictions Guidance does not assist the Appellant. This was not a conviction case. If the Tribunal had considered the Convictions Guidance, they would have noted that all convictions resulting in a sentence of imprisonment are to be referred to the Tribunal. In other words, the guidance uses imprisonment as a marker of seriousness. It could not help Dr Benn’s case.

The issue for the Tribunal was not whether Dr Benn’s actions should be condoned or excused but rather whether they amounted to the sort of misconduct that could potentially impair her fitness to practise.

I accept that the Tribunal’s view that the majority of the public would not condone breaking the law in the manner in which Dr Benn did was supposition. The evidence presented to the Tribunal did not establish a majority view one way or another. The same can be said of the fresh evidence. There is evidence of some strong support for Dr Benn but the evidence does not go further. The acknowledged limitations of the Doctors Association survey do not allow it to be viewed as representative of the views of the public as a whole.

In any event, even if the view of the majority of the public could be ascertained, this is not determinative of whether the conduct amounted to statutory misconduct. It was for the Tribunal to form their own evaluative judgment as to whether Dr Benn’s actions fell so far below the standards to be expected of a doctor as to amount to misconduct in the statutory sense. To the extent that, in arriving at their conclusion on misconduct, the Tribunal relied upon their view that the majority of the public would not condone what Dr Benn did, they were wrong to do so.

The essential question is whether the Tribunal were right to find that Dr Benn’s conduct fell “so far short of the standards of conduct reasonably to be expected of a doctor” such that they amounted to misconduct in the statutory sense.

Whatever her motivations, there is no doubt that Dr Benn’s conduct amounted to misconduct in the ordinary sense of the word. Dr Benn recognised this when giving evidence (D1/46-47 in the transcript), describing it as a “no brainer” and saying “of course it is misconduct” in the ordinary sense. She acknowledged that it was not acceptable conduct and that “it’s not within the norms of behaviour and boundaries set by the governing body of the profession”. There is also no doubt that it was serious. It was sufficiently serious as to be marked with a term of imprisonment. As I have said, the Tribunal were right also to take account of their findings about public disruption.

Dr Benn relied on her motivations to explain and justify her deliberate and unlawful misconduct. She invited the Tribunal to endorse her views on the climate emergency and the need for real action in the findings that they made. The views themselves are entirely reputable, supported as they are by credible medical and scientific papers. The Tribunal expressed respect for her right to hold and express those views. It is important though not to elide respect for the underlying cause with support for deliberate and unlawful misconduct. It was her conduct not her beliefs that brought Dr Benn before the Tribunal.

The motivations that underpinned Dr Benn’s conduct undoubtedly have a significant role to play in considering whether Dr Benn’s fitness to practise is impaired but they do not convert that which is otherwise obviously misconduct into something less.

As is clear from her own evidence, Dr Benn intended to act in a way that did not meet the standards of behaviour to be expected of a doctor. That was a deliberate part of her tactics. She referred (Transcript D1/38) to the need for something “eye-catching”, actions which were “more visible and potentially upsetting to the public” than conduct limited to that which was non-disruptive and entirely legal. She said in her written and oral evidence to the Tribunal:

“When a health professional or scientist steps into civil disobedience it can bring a laser focus to the climate emergency and a sense of urgency to the public.”

On her own evidence, Dr Benn brought her profession into her actions. She made it clear that she was conducting herself as a doctor. She intended that her misconduct would attract additional attention because she was a doctor and doctors are trusted voices within society. She relied upon that public trust and the fact that it would be considered shocking for a doctor to act unlawfully to spread her message. In doing so, she recognised that she was acting outside the boundaries set for the medical profession. These factors provide the connection with the medical profession that the authorities require such that, although the acts were committed outside medical practice, they crossed the dividing line into professional misconduct.

It follows that, although I have disagreed with some of the Tribunal’s reasoning, I consider that the Tribunal were ultimately right to conclude that this was misconduct in the statutory sense.

The Tribunal correctly recognised that their finding of misconduct did not lead automatically to a finding that fitness to practise was impaired. In determining whether Dr Benn’s fitness to practise was impaired, the Tribunal was required to assess whether there was a current or ongoing risk to one or more of the objectives set out in section 1(1B) of the Act.

In concluding that Dr Benn’s fitness to practise was impaired, the Tribunal relied on both the need to promote and maintain public confidence in the profession and the need to promote and maintain proper professional standards and conduct for members of the profession.

The Tribunal found that Dr Benn’s behaviour in not complying with the law on several occasions, disrupting public services and acting in a way that led to a custodial sentence would bring the profession into disrepute.

The reasons for Dr Benn’s conduct were undoubtedly relevant at this stage, as the Tribunal recognised. They had regard to what a well-informed member of the public or profession would think of her actions. They expressly acknowledged that amongst the public there would be considerable sympathy for Dr Benn’s concerns about the environment. However, they said that “the overwhelming majority of the public would not condone breaking the law in the repeated way that Dr Benn did, especially given the impact, on the final occasion to public services.”

In Samuel v Royal College of Veterinary Surgeons [2014] UKPC 13, Lord Toulson identified the impact on public opinion of detailed factual information about offences and offenders. He concluded that it should not be assumed that the public would think that someone convicted of offences including theft and assault which led to a suspended sentence of imprisonment ought not to be allowed to practise as a vet. If members of the public knew that Dr Samuel had lost his self-control in circumstances which included him being racially insulted, they might have thought that had very little impact on his fitness to practise. Ms Richards suggested that Dr Benn’s motivations would similarly lead the public to conclude that her misconduct has very little impact on her fitness to practise.

The circumstances in Samuel differed from those here. Dr Samuel had expressed regret for his actions, which were apparently out of character, and there was no likelihood of repetition. Dr Benn had clearly and frankly stated that she had no intention of changing her behaviour so as to stay within the law in future.

The extent to which an individual doctor’s misconduct is capable of bringing the profession as a whole into disrepute is not necessarily an easy issue, as is apparent from the Promoting and maintaining public confidence in the medical profession research report. The Hamilton review concluded that the research demonstrated inconsistency in the public view of wrongdoing by doctors. In relation to criminal offending, repetition was a factor that influenced the public’s views of whether action should be taken. Conviction and sentence was considered to be of less relevance. Opinion was more divided about when regulatory action is expected in relation to conduct outside the workplace. Overall, the suggestion was that wrongdoing by an individual doctor was unlikely to affect trust in the profession as a whole as members of the public took the view that incidences of wrongdoing amongst doctors are isolated to ‘a few bad apples’.

It is apparent that there is strong support for Dr Benn, at least amongst some sections of the public and the profession. The letter from the Chair of the British Medical Association dated 29 April 2024 states:

“It is not a universally held view by doctors that Dr Benn’s conduct had been such as to bring the profession into disrepute.”

Concerns are raised about the worrying message to doctors about the regulation of matters not directly related to patient care or their clinical skills. However, there is no doubt that regulation extends beyond that. It follows that, although the letter provides some support for Dr Benn, it does not represent a unified view from the profession nor does it reflect the same careful evaluative judgment which the Tribunal were required to make.

It is not straightforward to ascertain what the majority of the public would think about Dr Benn’s conduct after taking account of all the circumstances, including her motivations and her stated intention to continue to act outside the law. In Beckwith the court said [54] that popular outcry is not proof that a particular set of events gives rise to any matter falling within a regulator’s remit. Equally, popular outcry cannot form a basis for concluding that misconduct falls outside the regulator’s remit.

I agree with Ms Richards that asking what the overwhelming majority of the public would think is not the right question. I disagree that the Tribunal failed to ask the correct question, namely whether a finding that Dr Benn’s fitness to practise was not impaired would undermine public confidence or undermine the maintenance of proper standards and conduct for members of the profession. This is exactly what the Tribunal addressed in their conclusion.

I have accepted that the Tribunal overstated the requirement to act within the law at the misconduct stage. That was carried into their findings on impairment. However, I do not accept that the Tribunal were narrowly and rigidly focused on the mere fact of non-adherence to the law. On the contrary, it is apparent that the Tribunal gave careful consideration to all the unusual circumstances of this case, including Dr Benn’s motivations and her stated intention to continue to act outside the law.

It is not helpful to draw on the Convictions Guidance or Sanctions Guidance at this stage. The Tribunal did not proceed on the basis that all law-breaking would lead to a finding of impairment of fitness to practise. They properly focused on the misconduct they had found proved and the circumstances surrounding that. Dr Benn’s motivations for her misconduct were relevant, and were taken into account. They were not decisive of the issues the Tribunal had to decide. Drawing comparison with motivations for other forms of misconduct is not helpful.

Ms Richards accepted that, even if the compelling scientific case in relation to climate change and the need for action is accepted, there is room for difference of opinion about what needs to happen and how it should be achieved. These are matters that society as a whole has to tackle. Dr Benn takes the view that the situation is so desperate that what is now required cannot be achieved by lawful means. However, society functions by all citizens abiding by the law. A doctor’s status as a trusted professional is called into question if she not merely breaks the law but refuses to be bound by the law.

The respectability and merits of the cause do not lead to a different conclusion. The Tribunal expressed respect for Dr Benn’s views, for her right to hold them and her right to express them. She was perfectly entitled to campaign vigorously and to protest. She was entitled to do so invoking her status as a doctor to engender trust and support for her views. (Contrast the position in Adil where the doctor was expressing views on the Covid 19 virus which did not have any proper medical or scientific support.) What she was not entitled to do was to rely on her status as a member of the medical profession and the special trust that brings while repeatedly defying a court order (causing public disruption on the final occasion) resulting in her imprisonment.

In advancing the environmental cause, Dr Benn relied upon her status as a doctor and the public expectation that doctors are law-abiding citizens. The respect which the medical profession commands within society generally depends on the exercise of high personal and professional standards by the profession as a whole. Dr Benn knew that what she was doing was outside the “norms and boundaries” set for the profession. The special trust which she relied upon to bring greater attention to the cause she sought to advance would be lost, or significantly undermined, if doctors generally decided that they could disregard the law in pursuit of a cause they felt very strongly about. That is so notwithstanding that many members of the public and other doctors would be sympathetic to Dr Benn and to her cause. To that extent, Dr Benn’s conduct was capable of undermining public trust in the medical profession.

Even if that were not so, the need to maintain proper professional standards and conduct must be considered. The finding on misconduct was that Dr Benn’s behaviour had fallen far below what was reasonably to be expected of a medical professional. The Tribunal did not treat that as automatically leading to a finding that her fitness to practise was impaired. They considered that:

“…in principle, matters were easily remediable in that Dr Benn could decide for herself not to break the law again, and doing this would not preclude her continued involvement in environmental activism.”

In other words, the finding that Dr Benn’s fitness to practise was impaired was not based merely on historical wrongdoing which fell below the standards of personal conduct expected of a doctor but also took account of Dr Benn’s stated intention to continue to behave in the same way. In my judgment, it is not wrong to regard Dr Benn’s conduct in repeatedly breaching the injunction (to the extent she was imprisoned) and her stated intention to continue to act outside the law as being incompatible with her status as a member of the profession, whatever her motivations for that.

It follows that I do not consider that the Tribunal were wrong to find that Dr Benn’s fitness to practise was impaired.

No issue arises as to the legal approach taken on sanction. The Tribunal recognised the need for proportionality and that the purpose of any sanction was not punitive but to protect patients and the wider public interest. The Tribunal had regard to the Sanctions Guidance. The challenge is to the application of the principles to the facts.

The courts show an appropriate degree of deference and respect to the Tribunal, recognising their greater expertise in judging the relationship between the nature and gravity of the offending on the one hand, and promoting professional standards and maintaining public trust on the other (see Adil [90]). However, that is not to abrogate responsibility for deciding whether the sanction was appropriate and necessary in the public interest (Sastry [112]).

Having regard to my conclusions in relation to misconduct and impairment of fitness to practise, I consider that suspension was a necessary and proportionate response. That may well not have been the case had Dr Benn recognised that she should conduct herself within the standards expected of the profession in the future. As the Tribunal noted, that would not be to preclude her continued involvement in environmental activism, including taking part in lawful protests.

I have taken account of Dr Benn’s motivations in reaching my conclusions on misconduct and impairment. In light of those conclusions, there were no exceptional circumstances justifying taking no action. Dr Benn had demonstrated that she intended to continue to act as she had done previously. Her desire was to remain registered as a doctor while continuing to commit acts found to amount to misconduct in the statutory sense. In those circumstances, action is necessary to uphold the relevant statutory objectives.

The Tribunal referred back to their finding at the misconduct stage that it was not for them to “seek to reframe [the obligations of a doctor under GMP] or to caveat the requirement to act within the law by deciding on circumstances where a doctor is permitted to deliberately act outside the law.” That may have been expressed a little clumsily but, in the context of sanction, it perhaps addresses a proper concern: if a doctor can continue to act outside the law whilst maintaining her status as a medical professional, the Tribunal would not be upholding expected standards of conduct for the profession as a whole.

It is not suggested that any workable conditions could be formulated. Dr Benn had made it clear that she would not be bound by any conditions that impacted on her intended actions in connection with climate activism. Although Dr Benn had suggested that if the Tribunal were to take any action they should erase her, the Tribunal acted proportionately in imposing a period of suspension allowing for the possibility of demonstrating insight into the impact of a medical professional repeatedly acting outside the law.

The Tribunal’s consideration of the question of insight was fair. I have found that Dr Benn’s arguments about the impact of her actions are not realistic. The simple fact is that Dr Benn believes that it is appropriate to continue to take action that is unlawful to draw attention to her very real concerns about climate change. She minimises the impact of her actions on public resourcing.

It was reasonable to allow Dr Benn the opportunity to reflect on the impact of her stated intent to continue her misconduct on her standing as a medical professional. On the other hand, her clearly stated belief is that the need for action to avert climate disaster overrides the requirement to act within the law or the normal bounds of the profession. In those circumstances, the fact and length of the suspension was necessary and proportionate and it was also necessary and reasonable to direct a review hearing.

Accordingly, I agree with the Tribunal’s decision on sanction.

For the reasons I have set out in detail above, I would uphold the decision of the Tribunal that Dr Benn’s fitness to practise was impaired through misconduct and that her registration should be suspended for a period of five months with a review hearing to be convened shortly before the end of that period.

This appeal is accordingly dismissed.